Academic journal article Texas Law Review

Science and Policy in Setting National Ambient Air Quality Standards: Resolving the Ozone Enigma

Academic journal article Texas Law Review

Science and Policy in Setting National Ambient Air Quality Standards: Resolving the Ozone Enigma

Article excerpt

I. Introduction

The elusive interaction between science and policy has dominated riskbased standard setting since the dawn of the environmental era. This is attributable in part to the fact that the regulatory agencies operate on the frontiers of scientific knowledge and in part to Congress's choice of vague language to describe the level of expected protection. This interaction is especially apparent in the Environmental Protection Agency's (EPA's) efforts to promulgate and revise national ambient air quality standards (NAAQS) under § 109 of the Clean Air Act-where the EPA has navigated the boundaries between science and policy in ways that sometimes appear arbitrary or inconsistent to outside observers. The history of the EPA's most recent revision and attempted rerevision of the primary NAAQS for photochemical oxidants (ozone), in which two EPA Administrators from different political parties reached different conclusions on the same administrative record, offers a unique perspective on the roles of science and policy in environmental decision making.

Drawing on the ozone "rulemakings" as a case study, this Article will explore how science and policy interact in promulgating NAAQS. After providing an introduction to the NAAQS standard-setting process in Part II, Parts III and IV describe the EPA's 2008 revision to the ozone NAAQS and its reconsideration of the 2008 standard in 2009 through 2011. Part V then draws on the case study and the relevant academic literature to explore the roles of science and policy in environmental decision making. Part VI examines the critical question of what policy should guide the EPA's resolution of science-policy questions in NAAQS standard setting. Part VI also addresses arguments that the EPA's approach to NAAQS standard setting is incoherent because it does not provide a rational approach to determining how much risk is too much in the context of nonthreshold pollutants like ozone. This Article concludes that the EPA's traditional approach to NAAQS standard setting is neither incoherent nor irrational, and it is easily adaptable to nonthreshold pollutants.

II. Promulgating and Revising Ambient Air Quality Standards Under the Clean Air Act

The Clean Air Act requires the EPA to promulgate and periodically revise national primary and secondary ambient air quality standards for "criteria" pollutants that may reasonably be anticipated to endanger public health or welfare and that derive from numerous or diverse mobile or stationary sources.1 For each of the criteria pollutants, the Agency must first prepare a "criteria document" (now called an "integrated science assessment" (ISA)) that "accurately reflect[s] the latest scientific knowledge" on the health effects of the pollutant.2 It then establishes "primary" NAAQS for each pollutant at a level that is "requisite to protect the public health" while "allowing an adequate margin of safety."3 The legislative history of the statute makes it clear that the goal of the primary standards is to ensure "an absence of adverse effect on the health of a statistically related sample of persons in sensitive groups . . . ."4 The statute directs the Agency to conduct a "thorough review" of the existing criteria document every five years and, if necessary, revise the document and the corresponding standards to reflect scientific information that has become available since the last revision.5 To assist the Administrator in her assessment of the scientific evidence, the statute creates an independent sevenmember Clean Air Scientific Advisory Committee (CASAC).6

The Supreme Court elaborated on the roles of cost, risk, and uncertainty when it reviewed the 1997 revisions of the ozone and particulatematter standards in the seminal case of Whitman v. American Trucking Assn's.7 The Court carefully interpreted that section's operative phrases, "requisite to protect the public health" and "adequate margin of safety," to conclude that the statute "unambiguously bars cost considerations from the NAAQS-setting process . …

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